## Facts

- Elizabeth J.K.L. Lucas owned land in Niu Valley on Oʻahu and made inter vivos charitable gifts of undivided interests in the property to the Hawaiian Humane Society (HHS).
- The deeds stated that the conveyance was “for and as a charitable gift” to HHS “so long as” the land was used “for the benefit of the public” as “an educational preserve for flora and fauna,” accessible to the public as an educational experience under HHS’s control.
- The deeds further provided that if the property was “not so used,” the interest would pass to the State of Hawaiʻi “for and as a public park.”
- After Lucas’s death, the remaining ownership interests passed to her descendants, who later formed a general partnership (Tiana Partners) to hold their interests.
- Over many years, HHS investigated whether it could use the parcel as a public educational preserve. A feasibility study and discussions with potential partners led HHS to conclude that developing and operating a safe, publicly accessible preserve on the site would be extremely expensive and not workable given the site’s conditions and neighborhood impacts.
- The State also concluded the property was not suitable for use as a public park, making the deed’s gift-over purpose not workable in practice.
- HHS, the State (through the Attorney General), and Tiana Partners agreed on a proposed transaction: convey a portion of the land to the State for environmental purposes without public park development, sell the remainder to Tiana Partners, and place the sale proceeds into a fund to support HHS’s general educational programming.
- The parties petitioned the probate court to approve the transaction, arguing that cy pres permitted modification of the charitable arrangement because the specified uses had become impracticable.
- The probate court denied approval, reasoning that if HHS could not use the land as required, the deeds required the interest to pass to the State as the alternate recipient.
- HHS appealed. No party opposed the appeal; all agreed the probate court should have applied cy pres.

## Issues

1. Whether the probate court erred by refusing to apply cy pres to a charitable gift of land when the specified use (public educational preserve) and the deed’s gift-over use (public park) were impracticable.
2. Whether the deed language reflected a general charitable intent sufficient to allow judicial modification rather than strict enforcement of the gift-over provision.
3. Whether a transaction converting the land interest into proceeds for charitable educational uses could be approved as a disposition consistent with the donor’s charitable purpose.

## Decision

- The Intermediate Court of Appeals of Hawaiʻi vacated the probate court’s orders and judgment denying approval of the proposed transaction.
- The court held the probate court erred in declining to apply cy pres and in treating the gift-over clause as automatically controlling without considering impracticability and the donor’s broader charitable purpose.
- The court remanded with instructions for the probate court to apply cy pres and evaluate approval of a modified plan consistent with Lucas’s charitable intent.

## Legal Principles

- Cy pres permits a court to modify the terms of a charitable gift or charitable trust when the designated charitable purpose becomes unlawful, impossible, or impracticable, so the gift can be applied as near as possible to the donor’s charitable objective.
- A donor’s general charitable intent can be shown where the instrument identifies a charitable gift “for the benefit of the public,” even if it specifies a particular method or location for carrying out that purpose.
- A gift-over to an alternate charitable recipient does not necessarily bar cy pres where the alternative purpose is also impracticable; the court may modify the disposition to carry out the donor’s general charitable objective.
- Impracticability does not require literal impossibility; it can exist where compliance would impose excessive cost, difficulty, or burdens such that the charitable purpose would be significantly impaired.
- In charitable matters, the Attorney General’s position is relevant because the Attorney General represents the public’s interest in the proper administration of charitable gifts.

## Conclusion

The court required cy pres consideration for Lucas’s restricted charitable land gift because the record supported that neither a public educational preserve nor a public park was workable on the parcel; therefore, the probate court had to consider a modified arrangement—potentially converting the land into funds for educational uses—rather than ordering an automatic transfer under the gift-over clause.


In re Elizabeth J. K. L. Lucas Charitable Gift, 261 P.3d 800 (2011)